International law has taken three body blows in the last decade: Serbia, Iraq and now Libya, where foreign interference is patently obvious, where the entire anti-Gathafi campaign is orchestrated from abroad, manipulated by the media and controlled by elements who have been trying to assassinate the Libyan leader for decades.”


In an article published in Pravda.Ru, a Russian online journal, http://english.pravda.ru/opinion/columnists/27-02-2011/117026-libya_law-0/, the editor of the English version, Timothy Bancroft-Hinchey, claims that:

“not all Libyans are against Colonel Gathafi, which is patently obvious in Tripoli and probably in other areas, where they dare not show their heads among marauding crowds of thugs, terrorists and vandals who have taken the streets, the darlings of an anti-Gadhafi international media which appears to support acts of terrorism and public disorder”

He makes the point that “what is at stake here is respect for international law, which upholds the right of all countries to apply their Constitution in their own territory.” While his editorial is blatantly anti-American, it provides an interesting perspective on the current crisis in Libya and identifies key weaknesses in the application of international law during war.

This insight comes as the International Criminal Court Prosecutor, Luis Moreno-Ocampo, in accordance with the requirements under the Rome Statute  announced the opening of an investigation in Libya after just four days of analysis. The speed is unprecedented, as the prosecutor normally spends many months before reaching a decision to actually commence an investigation. Both the Security Council resolution and the swift response by the prosecutor is an indicator of the growing importance of the ICC in international affairs.

The ICC is different from the International Court of Justice (ICJ), which, with its predecessor court, has operated for nearly a century. While the ICJ handles legal questions involving states (such as the West Bank security barrier), the ICC is a criminal court that tries individuals. This is one of the material differences of the ICC and the ad hoc international tribunals created largely in the past two decades: they can take custody of individuals, try them, and put them in prison. The idea is that holding individuals accountable (and not just states) is the most effective way to deter serious violations of humanitarian law and human rights.

Interestingly, the United States not only supported the referring the Libyan situation to the ICC but even helped circulate a draft resolution with the idea, although it is not a party to the Rome Statute and it abstained in the referral of the Darfur violence.

As in the case of Darfur, the investigation regarding Libya might lead to arrest warrants targeting not only Col. Qaddafi and his family but also officers, soldiers, paramilitaries, or mercenaries engaged in criminal acts. If the court succeeds in taking suspects into custody, the process could then continue toward trials or sentencing.

Even if the process does not go that far, ICC involvement could still affect events significantly. ICC action is now a card in the hands of opponents of the Qaddafi regime. In any negotiations with Qaddafi, his opponents could use the stick of ICC prosecution (and the carrot of the Security Council’s suspending ICC action for renewable twelve month periods) as an incentive for Qaddafi to stand down. If Qaddafi decides to leave Libya with ICC action ongoing, then he might need to opt for countries like Nicaragua or Cuba that are not party to the Rome Statute, rather than a Rome Statute state like Venezuela. If violence continues, the threat of ICC prosecution also could motivate those working or fighting for Qaddafi to refuse orders.

Is international law enforceable under wartime conditions?

What role does the media play in building potential cases to be heard in the ICC?

Please post your comments below.

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